The application filed by the Centre to return the ‘superfluous’ excess area acquired by it under the Ayodhya Act of 1993 to owners including the Ram Janmabhoomi Nyas turns the logic of the Supreme Court’s 1994 Constitution Bench judgment on its head.
The apex court’s ruling in the Ismail Faruqui case upheld the acquisition of the acres adjacent to the Ram Janmabhoomi-Babri Masjid (RJBM) area from its owners to protect the Muslim community’s right of enjoyment and access to the disputed land in case they finally won the title dispute. This was the very justification the Centre had given at the time to the Bench for acquiring the entire 67.703 acres.
‘Protecting the rights’
“The justification given for acquisition of the larger area, including the property respecting which title is not disputed, is that the same is necessary to ensure that the final outcome of adjudication should not be rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in case the Muslims are found entitled to the disputed site,” the court observed in the Faruqui verdict.
The court noted that the government had found it necessary to acquire the large tracts of land from the Hindus in the neighbourhood of the disputed area for the simple reason that Muslims, if they “succeed in the adjudication of the dispute should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by exercise of rights of ownership of Hindu owners of the adjacent properties.”
Thus, the Bench found that the acquisition of the adjacent land was “incidental to the main purpose and cannot be termed unreasonable.” In short, both the legislature through the Ayodhya Act and the Supreme Court were particular that the Muslims, in case they won the case, experienced the “proper enjoyment of the fruits of success on the final outcome of the adjudication”.
“Even though, prima facie, the acquisition of the adjacent area in respect of which there is no dispute of title and which belongs to Hindus may appear to be a slant against the Hindus, yet on closer scrutiny it is not so since it is for the larger national purpose of maintaining and promoting communal harmony and in consonance with the creed of secularism,” the Supreme Court had explained.
Describing the demolition of the Babri Masjid as the launch of a “communal holocaust”, the court had in the Faruqui judgment asserted “today India seeks to heal, and not reopen its wounds; to look forward with hope, and not backwards with fear; to reconcile reason with faith.”
The government is right to point out in its January 28 application that the court had also made it the duty of the State to return superfluous land to the owners, at a “later stage”, after determining the “exact area acquired which is needed” for the winner of the Ayodhya title dispute to access and enjoy the disputed area. It had also given the owners liberty to challenge if the government failed to revert such superfluous land.
Nine years later, on March 31, 2003, another Constitution Bench separately intervened to prescribe status quo across the entire span of 67.703 acres. The Bench’s judgment, authored by Justice Rajendra Babu, in Mohd. Aslam @ Bhure case for the Constitution Bench came at a time in 2003 when the title suits were in the final stages of adjudication by the Allahabad High Court.
‘Absolutely necessary’
Justice Babu said it was not advisable to disturb the state of affairs as regards the acquired property, observing that the status quo had already been in place since 1992.
“It is well known that preservation of property in its original condition is absolutely necessary to give appropriate relief to the parties, on the termination of the proceedings before the courts and, therefore, we do not think that this is one of those cases in which it becomes necessary to disturb that state,” the court cautioned. The Bhure ruling made clear that the two acquired lands — the disputed RJBM area and the adjacent acquired land — were “intrinsically connected with one another”.
Now, a Constitution Bench is poised to finally hear the appeals in the case of the Ayodhya title suits. The situation is quite similar to when the Bhure decision was pronounced when adjudication before the high court was in its final throes.
Justice Babu’s words that the ‘present state of affairs should not be disturbed’ when a court is seized of the matter, are therefore particularly germane.
Besides, a question may come up in court on why the government chose to file the application to vacate/modify the Bhure decision at this point of time and not after the Allahabad High Court had pronounced its judgment in the title suits matter in September 2010.
